Seattle Washington Building Expert Directory

Wyncrest Commons: Commonly Used Progress Payments in Construction Contracts Do Not Render Them Installment Contracts

December 11, 2023 — Benjamin J. Hochberg - Peckar & Abramson, P.C.
In BIL-JIM Construction Company, Inc. v. Wyncrest Commons, LP, 2023 WL 7276637 (Unpublished, decided November 3, 2023), the New Jersey Appellate Division was asked to consider two issues regarding the interpretation and application of a construction contract that utilized the standard form American Institute of Architects owner/contractor agreement (AIA Document A101-2007) (the “AIA Contract”). Specifically, it was asked to consider: 1) whether a modified AIA Contract was an “installment contract,” whereby each progress payment was subject to its own statute of limitations; and 2) whether and when work had been approved in the context of New Jersey’s Municipal Land Use Law. While the decision is presently unpublished, it provides guidance as to how form contracts utilizing the same or similar terms will be treated by New Jersey’s courts and is a reminder that the potential for future claims must be considered during contract negotiations. Discussion The primary issue in Wyncrest was whether an AIA Contract was an “installment contract,” and the remaining issues turned on the resolution of this question. Wyncrest, the owner for the project at issue, did not dispute that its contractor, BIL-JIM Construction Company, Inc., had not been fully paid for work that it had performed in connection with a construction project located in Ocean County, New Jersey. Instead, Wyncrest argued that because its AIA Contract with BIL-JIM required that invoices be presented and paid monthly, it constituted an “installment contract.” As such, older payments would be treated as individual transactions and were time barred by the applicable statute of limitations. The trial court agreed with Wyncrest’s characterization of the AIA Contract as an “installment contract,” and found that BIL-JIM’s invoices were each subject to their own statute of limitations. However, the trial court disagreed with Wyncrest’s argument that BIL-JIM’s claim for retainage—which was submitted at the end of its work at the project—was time barred. Read the court decision
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Reprinted courtesy of Benjamin J. Hochberg, Peckar & Abramson, P.C.
Mr. Hochberg may be contacted at bhochberg@pecklaw.com

Manhattan Vacancies Rise in Epicenter Shift: Real Estate

August 20, 2014 — David M. Levitt – Bloomberg
The luster is fading on some of midtown Manhattan’s shiniest skyscrapers. Buildings in Midtown, from 30th Street to Central Park South at 59th Street, have more vacant blocks of contiguous office space than at the height of the recession in 2009, as landlords face increased competition from buildings downtown and at Hudson Yards on the far west side, according to a study by Savills Studley Inc., a New York-based real estate brokerage. “The epicenter of this city has shifted several times before and is in the process of shifting again,” Michael Cohen, tri-state region president of brokerage Colliers International, said in an interview. Midtown is “the hole in the doughnut,” where landlords are vulnerable to extended vacancies and rents that probably won’t rise dramatically. Read the court decision
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Reprinted courtesy of David M. Levitt, Bloomberg
Mr. Levitt may be contacted at dlevitt@bloomberg.net

Consumer Confidence in U.S. Increases More Than Forecast

August 26, 2015 — Victoria Stilwell – Bloomberg
Consumer confidence climbed more than forecast in August to the second-highest level in eight years as Americans held more favorable views of the labor market. The Conference Board’s index rose to 101.5 this month from a revised July reading of 91, the New York-based private research group said Tuesday. The gauge exceeded the highest estimate in a Bloomberg survey of economists, whose median forecast was 93.4. The cutoff date for the survey was Aug. 13, before the recent stock-market sell-off. Americans remained emboldened by job gains, cheaper gasoline and rising home prices in the period leading up to a slump in stock prices as global financial markets took a turn for the worse. The risk for the economy is that households will reassess their spending plans as they wait for evidence the U.S. expansion can withstand such shocks. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg

Improperly Installed Flanges Are Impaired Property

February 16, 2016 — Tred R. Eyerly – Insurance Law Hawaii
Answering certified questions from the Fifth Circuit, the Texas Supreme Court found there was no coverage for flanges that leaked after installation. U. S. Metals, Inc. v. Liberty Mutual Group, Inc., 2015 Texas LEXIS 1081 (Dec. 4, 2015). U. S. Metals sold Exxon 350 custom-made, stainless steel, weld-neck flanges for use in refineries. Testing after installation showed the flanges leaked and did not meet industry standards. Exxon decided to replace the flanges to avoid risk of fire and explosion. For each flange, this involved stripping the temperature coating and insulation, cutting the flange out of the pipe, removing the gaskets, grinding the pipe surfaces smooth for re-welding, replacing the flange and gaskets, welding the new flange to the pipes, and replacing the temperature coating and insulation. The replacement process delayed operation of the diesel units for several weeks. Exxon sued U.S. Metal for over $6 million as the cost of replacing the flanges and $16 million as damages for lost use of the diesel units during the process. U.S. Metals settled with Exxon for $2.2 million and then sought indemnification from its liability insurer, Liberty Mutual. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Canada Housing Starts Increase on Multiple-Unit Projects

October 08, 2014 — Greg Quinn – Bloomberg
Canadian housing starts rose 0.5 percent last month led by multiple-unit work, government figures showed. Work started on 197,343 units at a seasonally adjusted annual pace in September, Ottawa-based Canada Mortgage & Housing Corp. said today, close to the 198,000 median forecast in a Bloomberg economist survey with 18 responses. Multiple-unit projects such as condominiums and apartments rose 2.4 percent to 114,579 units. Single-family homes declined 2.9 percent to 62,440 units. Canada may need tougher rules to slow gains in the housing market, the International Monetary Fund said yesterday. Much of the attention has focused on high prices and robust construction of condos in Vancouver and Toronto. Read the court decision
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Reprinted courtesy of Greg Quinn, Bloomberg
Mr. Quinn may be contacted at gquinn1@bloomberg.net

Additional Dismissals of COVID Business Interruption, Civil Authority Claims

December 29, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Among the recent decisions dismissing complaints for business interruption and civil authority coverage due to closures caused by COVID-19 are Pappy's Barber Shops, Inc. v. Farmers Group, Inc., 2020 U.S. Dist. LEXIS 166808 (S.D. Calif. Sept. 11, 2020) and Sandy Point Dental v. Cincinnati Insurance Co., 2020 U.S. Dist. LEXIS 171979 (E.D. Ill. Sept. 21, 2020). The difficulty in proving "direct physical loss" was the downfall of both cases. In Pappy's, claims were made for business income losses insured as a result of local and state closure orders. The policy required "direct physical loss of or damage to property at the described premises." Plaintiffs argued that "direct physical loss of" did not require a tangible damage or alteration to property and that the loss of the ability to continue operating their businesses as a result of the government orders met this requirement. The court relied upon a prior decision, 10E, LLC v. Travelers Indem. Co. of Connecticut, 2020 U.S. Dist. LEXIS 165252 (C.D. Calif. Sept. 2, 2020) [post here], where the court noted that under California law, losses from inability to use property did not amount to "direct physical loss" within the meaning of the policy. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Sinking S.F. Tower Prompts More Lawsuits

January 19, 2017 — JT Long - Engineering News-Record
Homeowners on Jan. 6 added another lawsuit to the list pending against Millennium Partners, developer of the 645-ft-tall Millennium Tower, located in San Francisco’s South-of-Market district. The suit alleges that, as early as 2009, the developers knew the $350-million condo building was sinking faster than expected. Read the court decision
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Reprinted courtesy of JT Long, ENR
ENR may be contacted at ENR.com@bnpmedia.com

Failure to Comply with Sprinkler Endorsement Bars Coverage for Fire Damage

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
Despite its application stating otherwise, the insured's failure to install a sprinkler system in its building barred coverage for extensive damage caused by fire.American Way Cellular, Inc. v. Travelers Prop. Cas. Co. of Am., 2013 Cal. App. LEXIS 425 (Cal. Ct. App. May 30, 2013). American Way contacted a broker, A&J, regarding liability and property coverage. A&J sent American Way an application for a policy with Travelers. The application indicated American Way had a sprinkler system and fire detectors in its building. Travelers issued a policy with a Protective Safeguards Endorsement For Sprinkler Locations and Restaurants. The endorsement stated that as a condition of the insurance, the insured was required to maintain a sprinkler system. An exclusions section said the insurer would not pay for loss caused by fire if there was no sprinkler system. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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